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to be voted for by the voters of the entire state, it shall be the duty of the persons who shall sign and execute the certificate of nomination of such candidate or candidates, to likewise select some simple device or emblem to designate and distinguish the candidate of such independent body making such nomination, and such device or emblem shall be shown by the representation thereof upon such certificate of nomination. The device or emblem so chosen, when filed as aforesaid, shall be used to designate and distinguish all the candidates of the same party or independent body nominated by such party or independent body, or duly authorized committee or primary thereof, in all districts of the state and shall continue to be used to designate and distinguish the candidates of such party or independent body in all districts of the state until changed by the state committee of the party or by the independent body choosing such device or emblem. The device or emblem chosen as aforesaid may be a star, an animal, an anchor, or any other appropriate symbol, but neither the coat of arms or seal of any state or of the United States, nor the state or national flag, nor any religious emblem or symbol, nor the portrait of any person, nor the representation of a coin or of the currency of the United States shall be chosen as such distinguishing device or emblem.

Existing devices or emblems, heretofore chosen pursuant to law, shall continue until changed in the manner provided in this section as hereby amended.

Derivation: Election Law, pt. of § 56, as amended by L. 1898, ch. 335; L. 1901, ch. 654. Amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

Consolidators' note.-" A certificate signed and duly executed by the proper parties authorized for that purpose," at the end of the sentence imposing the duty of selecting an emblem on an independent body, is changed to "such certificate of nomination," for the reason that there can be no proper parties authorized for that purpose," but the emblem is included in the original nominating petition. The expression may have been intended to include the case of action by a committee designated "for the purposes specified by section sixty-six" (new §§ 135 and 136). The exceptional case is fully guarded in the sections governing it.

Purpose of emblem.-The object of the Election Law is to secure to each voter the right to cast his ballot for the party of his choice, and to this end the emblem is required, so that the illiterate voter may be secure in his choice; and the designation by name is made for the benefit and security of the voter who can read. Matter of Greene (1896), 9 App. Div. 223, 41 N. Y. Supp. 177.

Right to emblem.-The Independence League, having selected the balance scales as an emblem, and filed valid certificates of nomination for certain offices selecting that emblem, its right to such emblem is secured; and it is immaterial whether the League certificate of nomination for member of congress was filed before the certificate of another candidate for that office, selecting the same emblem, as the League candidate has a prior right to such emblem. Matter of Fitzgerald (1906), 51 Misc. 491, 100 N. Y. Supp. 753.

Officer with whom certificates are filed may select, where conflicting nominations are made between two conventions, each claiming to regularly represent a political party. People ex rel. Ward v. Roosevelt (1897), 151 N. Y. 369.

The affidavits of the executive officers of an independent party, like the Independence League, are competent evidence as to whether particular candidates are the legitimate candidates of that party and entitled to the benefit of the party name and emblem. Matter of Quimbly (1906), 116 App. Div. 142, 102 N. Y. Supp. 201.

When a petition signed by independent electors, and which includes the entire Democratic ticket, is supported by a sufficient number of electors to entitle the candidate to a place on the official ballot, it is entitled to be placed in a separate column under the name and emblem to be selected as directed by the statute. Matter of Brevillier (1906), 116 App. Div. 144, 102 N. Y. Supp. 217.

A large body of independent voters who entertain the same political views and who act in harmony and nominate a complete ticket of candidates favorable to their choice to be voted for at an approaching city election, held in conjunction with the state election, are entitled to have all their nominees both for city and state offices placed in the same column under the same emblem. Matter of Wise (1905), 108 App. Div. 52, 95 N. Y. Supp. 843.

The persons executing the respective certificates of nomination are for the purpose of selecting a name and an emblem for use upon the official ballot, to be regarded as one and the same 'independent body." Matter of Wise (1905), 108 App. Div. 52, 95 N. Y. Supp. 843.

An emblem on a certificate of nomination although resembling the profile of "Liberty" as used on some of the earlier coins, held not to be in violation of this section. Rept. of Atty.-Gen., Oct. 2, 1909.

§ 125. Conflict in names or emblems.

If two or more different parties or independent bodies shall select the same, or substantially the same, device or emblem or party name, the supreme court or any justice thereof within the judicial district or any county judge within his county shall decide which of said parties or independent bodies is entitled to the use of such device or emblem or party name, being governed as far as may be in his decision by priority of selection in the case of the device or emblem, and of use in the case of the party name. If the other party or independent body shall present no other device or party name after such decision, the custodian of primary records shall select for such other party or independent body another device or party name, so that no two different parties or nominating bodies shall be designated by the same device or party name. If there be a division within a party, and two or more factions claim the same, or substantially the same, device or name, the court or judge aforesaid shall decide between such conflicting claims, giving preference of device and name to the primary, body or committee thereof, recognized by the regularly constituted party authorities. Any question arising with reference to any device, or to the party or other name designated in any certificate filed pursuant to the provisions of this article, or with reference to the construction,

sufficiency, validity, or legality of any certificate, shall be determined upon the application of any citizen by the supreme court, or any justice thereof, within the judicial district, or any county judge within his county, who shall make such order in the premises as justice may require, but the final order at special term must be made on or before the twelfth day or, in the case of a certificate of nomination of a town or village officer, the seventh day preceding the day of election. Such question shall be heard upon such notice to such officers, persons or committees as the said court or justice or judge thereof shall direct.

The supreme court, at special term, in any judicial district in which two or more proceedings are pending in such district under the provisions of this section may, by order, consolidate all such proceedings and provide that further proceedings therein be had before such court at special term, in all cases where the question or questions invloved are identical. If one or more of such proceedings be pending before a justice or county judge, notice of such order shall be forthwith given to such justice or judge.

Derivation: Election Law, pt. of § 56, as amended by L. 1898, ch. 335; L. 1901, ch. 654.

Amended by L. 1911, ch. 649; L. 1913, ch. 820, and L. 1914, ch. 244, in effect Apr. 8, 1914.

Cross-references.-'As to use of name of any organized political party, see Election Law, § 123 and note. As to emblems, see note to Election Law, § 124. See also notes to sections 121 and 122 of Election Law.

See, generally, Matter of Werther (1916), 94 Misc. 681, 158 N. Y. Supp. 321. Hearings on legality of nominations, etc., by filing officer. - Where a dispute arises owing to the substantial identity of names or emblems chosen by two political parties, it is to be determined by the officer with whom the certificates of nomination are filed. Under the statute such officer must decide the dispute by determining as a matter of fact the "priority of designation in the case of a device or emblem, and of use in the case of the party named" irrespective of the filing of the certificates. Matter of Smith (1901), 36 Misc. 292, 73 N. Y. Supp. 463.

The provision authorizing the officer with whom certificates of nomination are filed to select the device or party name for factional candidates, applies where conflicting nominations are made between two conventions, each claiming to be regular representatives of a political party. People ex rel. Ward v. Roosevelt (1897), 151 N. Y. 369, 41 N. Y. Supp. 572.

Where questions of procedure in political conventions, or the regularity of committees are involved, which are regulated solely by party usages and customs, the officer called upon to determine such questions should follow the decisions of the regularly constituted authority of the party; and courts in reviewing the determination of such officers should not in any way interfere therewith. Matter of Fairchilds (1897), 151 N. Y. 359, 45 N. E. 943, rev'g 9 App. Div. 624.

Where a notary public through inadvertence fails to swear some of the signers of the certificate of nomination, he may explain such error to the officer filing the certificate, by affidavits, and the officer is bound to accept the evidence and deduct the number of the persons who were not sworn from the total number of signers of the certificate. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

The proceedings had before the officer filing in their nature, and the rules, as to pleadings, not be strictly maintained as in a civil action. Misc. 396, 47 N. Y. Supp. 543.

the certificate are summary objection or evidence, should Matter of Adams (1897), 21

The affidavit of a person, whose name appears upon the certificate of nomination, stating that he is the only person living at the street number given in the certificate, and that he never signed the certificate, should be received by the officer filing the certificate; and on affidavit of another signer that he never swore to the certificate should also be received. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

If there are not fifty bona fide signatures to the certificate, properly attested, in each of the requisite counties, the nomination is invalid. Matter of Adams, 21 Misc. 396, 47 N. Y. Supp. 543.

Where the name adopted by a body of independent voters in a certificate of nomination for member of the assembly, includes the name of an organized political party, the county clerk has no power or authority to select another name in place of the one chosen and to place the nominee named in the certificate upon the official ballot as a candidate of such new party. Matter of Carr (1904), 94 App. Div. 493, 88 N. Y. Supp. 107.

Clerk with whom a certificate of nomination is filed may determine whether the parties named in such certificate are legal voters. Report of Atty.-Gen. (1904), 270.

Proceedings to review determination of officer. These proceedings may be heard on affidavits. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

The hearing, in a proceeding to review the determination of a filing officer, must be confined to papers upon which the original determination was based. Matter of Fairchilds (1897), 151 N. Y. 359, 45 N. E. 943, rev'g 9 App. Div. 624; Matter of Commissioner of Elections (1909), 64 Misc. 620, 120 N. Y. Supp. 580.

It will be presumed in these proceedings that facts offered to be proved by affidavits presented to the officer filing the certificate and erroneously rejected by him were proved. Matter of Adams (1897), 21 Misc. 396, 47 N. Y. Supp. 543.

It is the duty of courts and judges entertaining proceedings under the Election Law to speedily decide the questions presented to them. Matter of Hennessy (1900), 164 N. Y. 393, rev'g 54 App. Div. 180.

Where a state nominating convention determines a political question the court will reverse the determination unless it is shown to have been the result of fraud or oppression. Matter of Nash (1902), 36 Misc. 113, 72 N. Y. Supp. 1057.

The objection that it does not appear affirmatively that notice of a primary election was published as required by the Primary Election Law cannot be taken for the first time on a review of the determination of the board of elections as to the result, and particularly where the alleged defect was not specified in the petition for a review. Matter of Kennedy (1902) 36 Misc. 721, 74 N. Y. Supp. 369.

Notwithstanding the fact that an election has been held and a decision of the question involved in proceedings to review the decisions of a filing officer cannot effect the result of that election, yet, where the point at issue is one of public interest affecting the rights of all the voters of the state, the court will determine it. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388.

A review of the determination of the officer filing a certificate of nomination may be had by a motion made on a petition filed. Matter of Cuddeback (1896), 3 App. Div., 103, 39 N. Y. Supp. 388.

In proceedings to determine the regularity of party nominations, the deci

cisions of party conventions, committees or caucuses are not binding and have no weight with the court. Matter of Broat (1894), 6 Misc. 445, 27 N. Y. Supp. 176; In re Heacock (1896), 18 Misc. 311, 41 N. Y. Supp. 161.

Jurisdiction. Under this section a court or judge has nothing to review unless there is a determination made by the board of elections in respect to the nomination of candidates. Matter of Candidates for Member of Assembly in 32d Dist. (1905), 108 App. Div. 361, 95 N. Y. Supp. 616.

The judicial district or county, within which to review the determination of the filing officer upon a contested certificate of nomination, is the district or county within which the complainant and respondent reside and where the transaction arose which was the subject of the determination. Matter of Fairchilds (1897), 151 N. Y. 359, 45 N. E. 943, rev'g 9 App. Div. 624.

A political convention is a law unto itself, but, where the duty is cast upon courts and judges to determine the regularity and fairness of political methods, those methods must be subjected to the same tests as would those of any other body of men whose good faith is questioned, and no court or judge would be justified in sustaining them when found to be inconsistent with that degree of sound morals which must characterize an ordinary affair of business, even though they be recognized and approved by senatorial and state conventions of the same political organization. Matter of Woodworth (1891), 16 N. Y. Supp. 147.

It is not in the province of the court to decide abstract questions of law in proceedings to review the determination of an official filing certificate of nomination, which could have no effect upon either candidate or upon the election. Matter of Woodworth (1892), 64 Hun, 522, 19 N. Y. Supp. 525.

The question whether a person named in a certificate for an independent nomination is disqualified from election as member of assembly cannot be determined in a proceeding to review a determination of filing officers. Matter of Independent Nominations (1906), 186 N. Y. 268, rev'g 103 App. Div. 463. Neither the Supreme Court nor a justice thereof has jurisdiction under this section to entertain a summary proceeding to determine the sufficiency of a petition filed by the town clerk, requiring the submission of local option questions to the electors of a town. Matter of Town of Newburgh (1904), 97 App.

Div. 438, 89 N. Y. Supp. 1065.

A citizen and prohibitionist voter who resides in the first judicial district may review there the adverse determination of the secretary of state although he resides in the third judicial district. Matter of Gillespie v. McDonough (1903), 39 Misc. 147, 79 N. Y. Supp. 182.

An application for an order overruling the decision of an officer with whom a certificate of nomination is filed is a special proceeding as defined by the Code of Civil Procedure, and the general term may entertain an appeal from an order affirming or overruling the determination of such officer, when the appeal can be heard and determined in due season. Matter of Mitchell (1894), 81 Hun, 401, 30 N. Y. Supp. 962.

An order by a justice of the Supreme Court determining the right to file a certificate and reviewing the original determination of the county clerk, is appealable to the appellate division of the Supreme Court. Matter of Emmett (1896), 150 N. Y. 538, 44 N. E. Rep. 1102, rev'g 9 App. Div. 237; Matter of Mitchell (1894), 81 Hun, 401, 30 N. Y. Supp. 962.

Under the provisions of section 56 of chapter 680 of the Laws of 1892, as amended in 1895, a judge of the Superior Court, of Buffalo, had power to make an order requiring a county clerk to file certificates of nomination and reversing the decision of county clerk that the certificates were not entitled to be filed. Matter of Cuddeback (1896), 3 App. Div. 103, 39 N. Y. Supp. 388.